Tag: Gonzales v. Voskakis

When Does An Award of $20,000 = A Significant Debt

No, this is not a trick question.  When can a judge awarding you $20,000 leave you in ‘significant’ debt?  The answer is when you fail to beat a formal offer at trial and have ‘loser pays’ costs assessed you.  I’ve discussed this reality previously and it was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Gonzales v. Voskakis) the Plaintiff was injured in a 2008 collison.  Prior to trial ICBC provided a formal settlement offer of $69,000.  The Plaintiff rejected this and proceeded to have a 12 day trial where she sought in excess of $385,000.  The claim was largely unsuccessful with the trial judge awarding just over $20,000 in damages.  ICBC asked that the Plaintiff be stripped of post offer costs and that the Defendant be awarded post offer costs and disbrsements.  The Plaintiff argued that such a result would “negate her entire judgement and leave her significantly in debt“.   Madam Justice Fitzpatrick noted that the underlying “behaviour modification objective” of the Rules of Court override any sympathy to the Plaintiff and levied substantial costs consequences.
The decision is also worth reviewing for the discussion of whether a post offer costs award to a Defendant can include disbursements.  The Plaintiff argued the Rules don’t contemplate this but the Court disagreed. In finding disbursements were also encompassed in the Rule Madam Justice Fitzpatrick provided the following reasons:
[65]         Rule 9-1(5) is headed “Cost options”. It is clearly intended to guide the court in deciding what costs award is just. Nevertheless, I do not see that subcategory (d) was intended to limit the discretion of the court to award a defendant’s disbursements in all cases when rewarding a defendant for making a reasonable offer. In many cases, disbursements are significant. In fact, the driving force behind an offer to settle may be the desire to avoid having to pay those disbursements. To limit the discretion of the court in awarding disbursements would defeat the clear intention of the Rule.
[66]         Although Brown J. came to another conclusion in Moore relating to double disbursements under Rule 9-1(5)(b), it appears that Kendall and Skidmore were not in front of her at that time. Therefore, in applying the principles set out in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I do not consider that I am bound by her reasoning.
[67]         I acknowledge that the wording of Rule 9-1(5), in its reference to “disbursements” in subcategory (a) without an accompanying reference to “disbursements” in subcategory (d), is awkward and confounding. In my view, however, the fundamental purpose of the Rule — which, as stated by the Court of Appeal in Kendall and Skidmore, is to compensate for all “costs”, including disbursements — has not changed. One can only hope for some clarity on this issue by possible amendments to Rule 9-1(5).
[68]         In the meantime, I conclude that I have the discretion under Rule 9-1(5)(d) to award the defendant his costs, including disbursements.
[69]         I award such costs, which will include disbursements, in favour of Mr. Voskakis for the period from January 25, 2012 until February 29, 2012.

Low Velocity Impact – Not the Law but a Factor That Can Be Looked At

I’ve written many times about the fact there is no legal principle behind the so-called ‘low velocity impact’ defence which seeks to reject injury claims solely on the severity of vehicle damage.  The forces of impact, however, are a factor a Judge or Jury can look at when weighing all of the evidence in support of an injury claim.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Gonzales v. Voskakis) the Plaintiff was involved in a minor rear-end collision   Despite the collisions relatively minor forces the Plaintiff sustained soft tissue injury to her neck and back.  The Plaintiff also alleged that she suffered a right shoulder injury which caused long term difficulties in limitations.
The Court grappled with various potential causes of the shoulder injury and ultimately rejected the claim it was related to the collision.  In doing so one of the factor’s the Court looked at were the forces of impact. Madam Justice Fitzpatrick provided the following reasons addressing this evidence:
[206]     I will briefly address one aspect of the submissions from the defence regarding the low impact of the collision, namely, what is to be taken from that fact.
[207]     Evidence of the damage caused and the impact generally can be one of many factors considered by the court in determining what injuries, if any, were caused by the accident: see, e.g., Koonar v. Schleicher, [1997] B.C.J. No. 3054 (P.C.) at paras. 30-33.
[208]     In Miller v. Darwel, 2005 BCSC 759, the court stated:
[9]        On appeal, the claimant argues that the trial judge erred in considering the force of the impact of the collision on the issue of liability. In support of this position the claimant relies upon the case of Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray, J. (as he then was) said at para. 4:
I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has not application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.
[10]      As other judges who have considered this passage have already said, these words should not be taken to mean that the extent of damage in a collision is irrelevant to causation. It is some evidence of impact, which is not logically unrelated to injury.
[11]      I agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400 (B.C.S.C.), when he said at para. 7:
Such evidence is therefore relevant with respect to what injuries resulted from the impact and to the issue of the credibility of the plaintiff who asserts such injuries, by reason of the fact that such injuries often do not have objective symptoms. Such evidence may, depending upon the extent of the property damage, either contradict or corroborate evidence of personal injury.
[209]     More recently, Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5, that “[t]he Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.”
[210]     I agree that this was a low impact collision, as discussed earlier in these reasons. As such, it is a factor to be considered when assessing Ms. Gonzales’ claims of injury, particularly as they relate to her right shoulder.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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